After the Storm: What You Need to Know for Employment Law

Recovering from the effects of a natural disaster, such as Hurricane Irma, can seem daunting, especially for employers having to address the fallout on both professional and personal fronts. It is therefore understandable that human resource issues are not at the forefront of most peoples’ minds. However, employers need to be careful not to overlook important employment considerations when trying to get their businesses back on track after a significant event like Hurricane Irma. To help employers in that process, we have identified the following post-storm employment issues to be mindful of, along with some preliminary guidance on those matters.

Wage & Hour Issues
One of the key considerations for every employer is what to do about paying its employees after a major natural disaster. Under the federal Fair Labor Standards Act (FLSA) and applicable Florida wage and hour laws, employers are only required to pay “non-exempt” employees (employees who must be paid overtime compensation) for time they actually work. Thus, an employer generally need not pay a non-exempt employee who is absent from work regardless of the reason.

An exception to the forgoing is if the employer pays a non-exempt employee a fixed salary for a fluctuating workweek (FSFW). Under this compensation model, a non-exempt employee must receive a fixed amount as straight-time pay for whatever hours he or she is called upon to work in a workweek. Thus, for a FSFW pay plan, an employer must pay a non-exempt employee his or her full salary unless no work was performed in that workweek.

Employers should also be mindful of whether their non-exempt employees were required to be “on-call” or “wait” while Hurricane Irma passed through Florida, or during the subsequent recovery process. Likewise, employers should be cognizant of whether their non-exempt employees are working remotely post-Hurricane Irma. Employers should review their payroll policies to determine what time recording and reporting requirements have been communicated to their employees, as well as whether employees have been advised in a handbook or other document of the need to alert the employer if they discover any discrepancies between their hours worked and amounts paid.

As for employees “exempt” from overtime compensation, employers generally must pay such employees their full salary for their work in any workweek regardless of the number of days (including partial days) or hours worked, and employers may not make deductions from that amount for absences occasioned by the employer or the operating requirements of that business. For example, an employer that closes operations because of a weather-related emergency or disaster for less than a full workweek must pay its exempt employees their full salaries. However, the U.S. Department of Labor has recognized some absences due to adverse weather conditions constitute an absence for personal reasons. Therefore, an employer can make deductions from an exempt employee’s salary if (1) its business has reopened and (2) the exempt employee thereafter missed one or more full days of work because of Hurricane Irma. Importantly, employers need not pay exempt employees for any workweek in which they perform no work, regardless of the reason, unless there is a contractual obligation.
Attendance Issues
Another prominent consideration for employers after a natural disaster is when and how much time employees may have away from work. Employers should review their existing attendance policies and determine whether any temporary policy change should be made to accommodate employees affected adversely by Hurricane Irma. Employers should also examine their company vacation and sick leave policies to determine how those might affect employees needing time away from work.

Importantly, employers should be aware that Hurricane Irma could trigger their employees’ rights to certain leaves of absence. For example, an employee who sustained a serious health condition because of Hurricane Irma could be entitled, if eligible and working for a covered employer, to up to 12-workweeks of protected leave under the Family and Medical Leave Act (FMLA). An eligible employee could also be entitled to protected leave under the FMLA (and any applicable local ordinance) if he or she needs to care for a family member that has a serious health condition resulting from or exacerbated by Irma.

Employees missing work because of service as members of the National Guard, or as a member of the reserve component of the Armed Forces, could also implicate the Uniformed Services Employment and Reemployment Rights Act of 1994 and Florida law if the employees have been ordered into active duty. Finally, covered employers should be alert to the potential need for unpaid leave under the Americans with Disabilities Act and the Florida Civil Rights Act for employees injured by Irma.
Safety Issues
Under the Occupational Safety and Health Act, private-sector employers are responsible for the safety and health of their workers and for providing a safe and healthful workplace. Accordingly, employers are required to protect workers from anticipated hazards associated with severe weather response and recovery operations. As part of this effort, employers should evaluate each task and operation they engage in to determine whether the effects of Hurricane Irma have created a hazardous condition or could lead to the creation of a hazardous condition if not properly addressed.

For example, employers should assess whether Irma has created any health and safety concerns in the workplace associated with, among other things, falls, electrocution, cuts/lacerations, high ambient temperatures, or exposure to hazardous substances or infectious materials (such as from spills or flooding). Additionally, employers should examine workplace structures and existing equipment for employee protection (such as ventilation) to ensure they are all stable and in good working order. Employers should also take this opportunity to ensure that workplace conditions conform to applicable OSHA standards. Finally, employers should determine what measures to take to protect workers from any hazards identified.
Closure Issues
For some employers, the magnitude of Hurricane Irma and the resulting damage may make it impossible for their businesses to reopen. Similarly, the cost of carrying on business post-Irma could require that an employer lay off a sizable portion of its workforce. In those instances, employers with 100 or more employees may need to comply with the Worker Adjustment and Retraining Notification (WARN) Act.

Under the WARN Act, covered employers are generally required to provide at least 60 calendar days advance written notice of a plant closing or a mass layoff affecting 50 or more employees at a single site of employment. However, the WARN Act makes certain exceptions to those requirements when the closure or layoff is the direct result of a natural disaster. In such instances, employers must give the employees affected as much notice of the plant closure or layoff as possible.

These are just a few of the post-storm employment issues to be mindful of, but what about important considerations for the rebuilding process? You can read more about issues in the construction process here.